PORT ANGELES — The ban on City Council members using profanity, sparked by a “hell yeah” from Councilman Lee Whetham, should be removed from the council’s new rules of procedure as being unable to withstand a legal challenge, City Attorney Bill Bloor has recommended.

And Deputy Mayor Cherie Kidd, who added the clause “nor use profanity” to the rules the Port Angeles City Council approved Aug. 16, agrees.

“It was three words,” she said. “It seemed like a good idea at the time.

“If it’s not easy to enforce, it’s not worth the time or trouble.”

Bloor’s recommendation, contained in a 15-page Aug. 26 council memo, will be discussed by the council at its regular meeting Tuesday at City Hall, Mayor Patrick Downie said Friday.

“It may be well-intended, but it may be difficult if not impossible to define what profanity is,” said Downie, who had joined a 6-1 majority in voting for the ban. Whetham voted against it.

The meeting is set for 6:30 p.m. at City Hall, 321 E. Fifth St.

Bloor said in his memo that if the public’s right to use profanity at a council meeting is protected speech, which courts have determined it is, then so likely is it the right of elected officials also to utter profanity — unlike public employees.

“It is my opinion that, if challenged, a court today would adopt the argument that elected officials must be free to express themselves on matters of current public importance, and that the First Amendment rights of elected officials are more consistent with the rights of private citizens than with the limited rights of public employees,” he said.

In a surprise suggestion and without prior discussion, Kidd suggested the same night that the rules of procedure were approved that the words “nor use profanity” be added to a list of council member behaviors that should be prohibited to guarantee “respect and decorum.”

While not explaining the basis of the suggestion, Kidd said in a later Peninsula Daily News interview that she was prompted by Whetham’s two exclamatory “hell yes” outbursts at an Aug. 2 council meeting, when council members voted 4-3 to stop municipal fluoridation until at least a Nov. 7, 2017, advisory election.

Whetham favored ending fluoridation, while Kidd was opposed.

Kidd, who said residents had complained about Whetham’s language, was anxious Friday to put the issue behind her.

“I have no qualms about removing it whatsoever,” she said. “It’s not that important an issue to focus that much time on.”

In his Aug. 26 memo, Bloor suggested four options for the council: Simply leave the rules as they are, delete the nor-use-profanity wording, make the ban “aspirational rather than mandatory” or retain the wording with an attempt to justify it.

That justification requires a high bar to pass, Bloor suggested.

“To do that, the council would need to recognize and define some compelling state interest that requires the language to be included in the rules and to add a definition to eliminate the current vagueness inherent in the current wording,” he said in the memo.

Bloor said Friday he and a staff member “spent a fair amount of time” trying to interpret the wording approved by the council, saying the prohibition prompted numerous calls to his and City Manager Dan McKeen’s offices.

Bloor said in his memo that his staff was left without direction by the council on what council members had in mind when they voted for the rules of procedure.

The council had reviewed three versions of rules of procedure for the public and the City Council, according to Bloor.

Council members studied other cities’ rules, held two work sessions, conducted a public hearing and discussed the rules at three council meetings before the profanity ban was considered Aug. 2.

“And city staff was not asked to review or comment on that possible addition to the rules,” Bloor said.

“For these reasons, there is no record of the council’s purpose, intent or expectations related to the addition,” he said.

“The Washington courts have recognized that ‘profanity’ has two meanings, one religious and one secular.

“Those meanings are not the same, and an attempt to forbid ‘profane’ speech implicates the First Amendment to the Constitution.

“The tests to determine the validity of the definition are whether the attempted regulation of speech serves a compelling state interest and whether the attempt is overbroad.”

Whetham, the lone no vote on approving the rules, wanted to move beyond the profanity ban, he said Friday.

“We’ve got other problems to decide [on] other than the profanity clause in our current set of rules,” he said.

Whetham said he remains concerned about a prohibition in the rules on disruptive behavior that applies to the public at council meetings.

Whetham has issues with rules that illustrate disruptive behavior with such examples as “irrelevant or repetitious speech,” “audience demonstrations such as booing [and] display of signs” and the power of the chair to declare that a disruption is taking place.

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Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 55650, or at paul.gottlieb@peninsuladailynews.com.